B-110683, JAN. 27, 1970

B-110683, JAN. 27, 1970

MILITARY--FAMILY ALLOWANCE--STALE CLAIM DECISION TO CLAIMANT SUSTAINING DISALLOWANCE OF CLAIM FOR REFUND OF UNPAID FAMILY ALLOWANCE PAYMENTS TO WIFE FROM 1940 TO 1945 DURING CLAIMANT'S SERVICE WITH NAVY. SINCE APPROXIMATELY 22 YEARS HAVE ELAPSED SINCE ORIGINAL CLAIM WAS RECEIVED IN 1947 AND DATE OF PRESENT CLAIM, GOVERNMENT IS NOT IN POSITION TO DETERMINE WHAT ACTION WAS TAKEN BY NAVY BECAUSE RECORDS HAVE BEEN DESTROYED. HENCE WHERE CLAIMANT HAS SLEPT ON RIGHTS PRESUMPTION ARISES THAT CLAIM WAS NOT VALID.

TO MR. EPEFANIO DIAL:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REFUND OF UNPAID FAMILY ALLOWANCE PAYMENTS TO YOUR WIFE DURING THE PERIOD FROM OCTOBER 23, 1940, TO THE DATE OF YOUR RELEASE FROM ACTIVE DUTY IN NOVEMBER 1945 FROM THE UNITED STATES NAVY, WHICH WAS THE SUBJECT OF LETTER DATED SEPTEMBER 5, 1969, TO YOU FROM OUR CLAIMS DIVISION.

OUR RECORDS SHOW THAT YOUR CLAIM FOR FAMILY ALLOWANCE PAYMENTS FOR THE PERIOD NOVEMBER 1, 1943, TO AUGUST 31, 1945, WAS FORWARDED BY OUR OFFICE TO THE NAVY DEPARTMENT ON SEPTEMBER 2, 1947, FOR APPROPRIATE ACTION. THE NAVY FINANCE CENTER, NEW FEDERAL OFFICE BUILDING, CLEVELAND, OHIO 44199, ADVISED US ON AUGUST 7, 1969, THAT THE PERTINENT RECORDS HAVE BEEN DESTROYED IN ACCORDANCE WITH THERECORD DISPOSAL PROGRAM, AND ADDITIONAL INFORMATION CANNOT BE FURNISHED. YOU INSIST, HOWEVER, THAT THE RECORDS OF PAYMENT ARE INTACT AND YOU REQUEST THAT YOU BE FURNISHED A STATEMENT OF YOUR PAY AND ALLOWANCES FOR THE PERIOD INVOLVED.

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, PROVIDED THAT FOR ANY PERIOD DURING WHICH AN ENLISTED MAN WAS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER JUNE 1, 1942, HIS DEPENDENT OR DEPENDENTS WERE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT, INCLUDING THE GOVERNMENT'S CONTRIBUTION AND A REDUCTION IN OR CHARGE AGAINST THE MONTHLY PAY OF THE ENLISTED MAN.

UNDER THE LAW THE FAMILY ALLOWANCE WAS PAYABLE ONLY TO THE DEPENDENT OR DEPENDENTS OF THE ENLISTED MAN. THE PURPOSE OF THE ACT WAS TO PROVIDE SUPPORT FOR THE ENLISTED MAN'S FAMILY WHILE HE WAS SERVING IN THE ARMED FORCES AND NO AUTHORITY EXISTS FOR REFUND OF THE AMOUNTS DEDUCTED FROM THE SERVICEMAN'S PAY AS HIS CONTRIBUTION SO LONG AS HIS DEPENDENTS HAVE A RIGHT TO CLAIM THE ALLOWANCE. IN NO EVENT DOES THE MAN HAVE THE RIGHT TO RECEIVE THE FULL AMOUNT INCLUDING THE GOVERNMENT'S CONTRIBUTION TO THE SUPPORT OF THE DEPENDENTS AND HE MAY RECEIVE REFUND OF THE AMOUNT WHICH THE RECORDS SHOW WAS DEDUCTED FROM HIS PAY ONLY IF HIS DEPENDENTS WERE NOT ENTITLED TO IT.

IN YOUR CASE, YOUR WIFE APPARENTLY WAS ENTITLED TO CLAIM ANY FAMILY ALLOWANCE PAYMENTS THAT SHE DID NOT RECEIVE. HOWEVER, ANY CLAIM THAT SHE MIGHT PRESENT IS NOW BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, WHICH PROVIDES THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED. THE PRIMARY PURPOSE OF THE ACT WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS.

THE ACT OF OCTOBER 9, 1940, ALSO BARS YOUR PRESENT CLAIM EXCEPT FOR THE PERIOD FROM NOVEMBER 1, 1943, TO AUGUST 31, 1945, WHICH WAS INCLUDED IN YOUR 1947 CLAIM THAT WAS FORWARDED BY OUR OFFICE TO THE NAVY DEPARTMENT. MOREOVER, THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 DID NOT AUTHORIZE FAMILY ALLOWANCE PAYMENTS BEFORE JUNE 1, 1942, AND THUS YOUR WIFE WAS NOT ENTITLED TO SUCH PAYMENTS BEGINNING OCTOBER 23, 1940, AS YOU CLAIM.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY REFUSED TO ALLOW A CLAIM WHERE THE CLAIMANT HAS SLEPT ON HIS RIGHTS FOR A LONG PERIOD OF YEARS AND THE PRESUMPTION ARISES THAT THE CLAIM WAS NOT VALID OR THAT IT HAS ALREADY BEEN PAID. 4 COMP. DEC. 276; 5 COMP. DEC. 282; AND 4 COMP. GEN. 805. APPROXIMATELY 22 YEARS ELAPSED BETWEEN THE DATE YOUR ORIGINAL CLAIM WAS RECEIVED IN 1947 AND AUGUST 11, 1969, THE DATE YOUR PRESENT CLAIM WAS RECEIVED IN OUR OFFICE. THE GOVERNMENT IS NOT IN A POSITION TO DETERMINE AT THIS LATE DATE WHAT ACTION WAS TAKEN BY THE NAVY DEPARTMENT ON YOUR CLAIM SINCE DURING THAT PERIOD THE RECORDS NECESSARY TO MAKE SUCH DETERMINATION HAVE BEEN DESTROYED AS AUTHORIZED BY LAW.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION IN THE LETTER OF SEPTEMBER 5, 1969, IN EFFECT DENYING YOUR CLAIM IS SUSTAINED.

SINCE THE NAVY DEPARTMENT DESTROYED THE RECORDS, WE ARE UNABLE TO FURNISH YOU A STATEMENT OF YOUR PAY AND ALLOWANCES FOR THE PERIOD INVOLVED.